Clarke v General Optical Council [2017] EWHC 521 (Admin)
The judgment of Fraser J gives guidance on the extent to which a Committee should consider factors such as prospective retirement when assessing fitness to practise and sanction. The General Optical Council's Fitness to Practise Review Committee's decision to erase Mr C from the register was 'plainly and obviously wrong' because it failed to take account of Mr C's retirement, his sale of practice and his undertaking never to return to practice.
The GOC commenced disciplinary proceedings against C, then an optometrist, following a newspaper article in which a patient who had lost his sight complained about the delay in his being referred by C for further investigation into defects in his vision which were indicative of a tumour. In July 2014 an 18 month interim suspension order was made against C. C admitted that he had caused a delay in the diagnosis of the tumour. In April 2015, C confirmed that he had sold his optometric business and had retired. The GOC refused his request that his name be removed from the Register and the disciplinary process continued.
The initial Fitness to Practise ('FTP') Committee found in June 2015 that C's failure had been 'grave' but decided that erasure (the ultimate sanction) would be disproportionate. It imposed a 12 month suspension to allow C to consider whether he still wished to cease practising and if not to complete Compulsory Education and Training ('CET'). In advance of the Review hearing in June 2016, C confirmed that he had not practised as an optometrist since the first hearing and maintained his decision to retire and sell his business. He asked to escape erasure and gave undertakings not to practise. The Review Committee noted that he had not undertaken any CET since July 2014 and decided that his fitness to practise was still impaired and his registration should be erased. C appealed on the basis that the finding of impairment was wrong, erasure was unnecessary, disproportionate and unfair and the Committee's reasons were inadequate and not sufficiently clear.
In allowing C's appeal, Fraser J identified numerous procedural irregularities in the Review Committee's decision which made it 'plainly wrong', including:
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the absence in the GOC's rules of a procedure for a registrant to remove himself from the register did not mean that C's undertakings and retirement did not need to be considered when assessing impairment and sanction;
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it failed properly to consider factors which should have guided its approach to considering impairment (Abdul-Razzak v General Pharmaceutical Council [2016] EWHC 1204 (Admin));
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it did not apply the three part test set out in Cohen v GMC [2008] EWHC 581 Admin: whether the conduct was remediable, had been remedied and was likely to be repeated. Had the Committee considered the likelihood of repetition, it would have recognised that the public would be protected as C had retired and sold his practice: he would not be treating any patients;
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it misunderstood C's undertakings, which were provided as a result of the first FTP Committee's ruling, that C use his suspension to consider whether he wished to continue in the profession;
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it wrongly took into account C's failure to undertake CET during his suspension. He could not have known he was required to perform CET since the FTP Committee's decision was that he only need do so if he decided against retirement; and
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although the GOC claimed to have a policy of not permitting registrants to remove themselves from the Register whilst subject to disciplinary proceedings, this had occurred in three cases.
Anticipating how registrants may seek to misappropriate this case, Fraser J noted that his judgment is not authority for a registrant avoiding disciplinary proceedings by taking a decision to retire. (Evading sanction via this route is a central concern in the consideration of voluntary erasure/removal applications). Rather, the judgment is a useful reminder that in assessing fitness to practise and the appropriate sanction, the future risk posed to the public must be considered. To avoid judicial criticism, regulators must be cautious to give proper regard to retirement or intention to retire alongside all other relevant facts including the public interest in an appropriate sanction (CHRE v NMC and P Grant [2011] EWHC 927 (Admin)).